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ELCPartially AllowedNot stated in the judgment· [2021] KEELC 3421 (KLR)

James Murithi Silas v Dorothy Ngaruini & another [2021] KEELC 3421 (KLR)

Environment and Land Court
5 May 2021
LMLucy N. Mbugua
742 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru court declared a man the lawful owner of 1.5 acres he occupied openly since 2000, confirming Kenya's 12-year adverse possession rule.

What this practically means

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Executive summary

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The plaintiff filed an Originating Summons under Sections 7, 17, 18, 37 and 38 of the Limitation of Actions Act and Section 28(h) of the Land Registration Act seeking a declaration that he had acquired 1.5 acres out of parcel NO. NKUENE/U-MIKUMBUNE/600 by adverse possession, alternatively a declaration that the deceased's estate held that portion in trust for him, an order compelling the defendants to execute a transfer, and costs. He averred that in 2000 he bought the portion from the deceased's family to assist them pursue a succession cause, took possession, fenced and farmed the land openly and exclusively, and was never dispossessed; the 1st confirmation of grant in the succession suit had allocated him the portion before the grant was revoked on objection. The suit proceeded by formal proof: the 1st defendant entered appearance but filed no defence, and the 2nd defendant never entered appearance, though DW1 joined issues at trial. Applying Mtana Lewa v Kahindi Ngala Mwangandi, the court found the elements of adverse possession proved on a balance of probabilities, the claim of exclusive possession since 2000 being unchallenged. The court declared the plaintiff owner of the 1½ acres by adverse possession, ordered the defendants to execute transfer instruments with the Executive Officer empowered to execute in default, and directed that each party bear their own costs. The alternative trust prayer was not granted.

Key legal issues

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01

Whether the plaintiff acquired title to 1½ acres of parcel NO. NKUENE/U-MIKUMBUNE/600 by adverse possession

Holding

Yes; the plaintiff proved open, continuous and exclusive possession since 2000, uninterrupted for over 12 years

Reasoning

The court adopted the test in Mtana Lewa v Kahindi Ngala Mwangandi that adverse possession arises where a person in possession asserts rights and the title holder neglects to act for 12 years. The plaintiff's claim of exclusive possession from 2000 was unchallenged; the 2nd defendant admitted the claim and the 1st defendant, though appearing, filed no defence. The case proceeded by formal proof and the claim was proved on a balance of probabilities.

p. 2

Legal principles established

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  • Adverse possession requires possession asserting rights over land for 12 years without the titled owner taking action

Court orders

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  1. 1.A declaration that the plaintiff has acquired by way of adverse possession ownership of a portion measuring 1½ acres out of land parcel NO. NKUENE/U-MIKUMBUNE/600
  2. 2.An order that the defendants execute transfer instruments for the 1½ acres out of land parcel NO. NKUENE/U-MIKUMBUNE/600 in favor of the plaintiff, and in default the Executive Officer of the Court is empowered to execute the transfer instruments
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Limitation of Actions Act Cap 22Sections 7, 17, 18, 37 and 38
  • Land Registration Act 3 of 2012Section 28(h)

Cases cited (2)

  • Mtana Lewa v Kahindi Ngala Mwangandi
    COA MALINDI (2015) eKLR
  • Paul Mwangi Gachuru v Kamande Nguku
    (2017)
Jurisdiction invoked
Sections 7, 17, 18, 37 and 38 of the Limitation of Actions Act Cap 22 and Section 28(h) of the Land Registration Act 3 of 2012

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Murithi Silas v Dorothy Ngaruini & another [2021] KEELC 3421 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3421/eng@2021-05-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.